Citation Nr: 0947998
Decision Date: 12/18/09 Archive Date: 12/31/09
DOCKET NO. 06-02 808 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Stephanie L. Caucutt, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1964 to July
1996.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2005 rating determination of
a Regional Office (RO) of the Department of Veterans Affairs
(VA) in St. Petersburg, Florida. The Veteran testified
before the undersigned Veterans Law Judge in October 2007; a
transcript of that hearing is associated with the claims
folder.
In January 2008, the Board denied entitlement to service
connection for tinnitus. The Veteran subsequently appealed
to the Court of Appeals for Veterans Claims (Court). In a
Joint Motion for Remand, the parties (the Secretary of VA and
the Veteran) determined that a remand was warranted. By a
December 2008 Order of the Court, the Court granted the Joint
Motion for Remand, vacated the January 2008 Board decision,
and remanded the matter for readjudication.
FINDING OF FACT
The competent evidence is in equipoise as to the issue of
whether the Veteran's tinnitus is related to his active
military service.
CONCLUSION OF LAW
Tinnitus was incurred during the Veteran's active military
service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002);
38 C.F.R. § 3.303 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
VA's Duties to Notify and Assist
Since the entire benefit sought on appeal has been granted,
no purpose would be served by undertaking an analysis of
whether there has been compliance with the notice and duty to
assist requirements set out in the Veterans Claims Assistance
Act (VCAA) of 2000 (codified at 38 U.S.C.A. §§ 5100, 5102-
5103A, 5106, 5107, 5126 (West 2002)).
Analysis
Initially, the Board observes that the Veteran submitted
evidence in support of his claim following certification of
this appeal to the Board. This evidence, a November 2007
private medical opinion, was accompanied by a waiver of RO
review. Thus, there is no prejudice to the Veteran in the
Board considering this evidence and proceeding with a
decision at this time. 38 C.F.R. § 20.1304(c) (2009).
The Veteran asserts that he is entitled to service connection
for tinnitus as he first experienced ringing in his ears
during service which has continued on and off until the
present day. He testified that he experienced tinnitus
following exposure to shotgun fire noise while serving as a
member of a military skeet shooting team as well as during an
incident in which he was less than ten feet from the firing
of an 105 artillery shell.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a)
(2009). That an injury occurred in service alone is not
enough; there must be chronic disability resulting from that
injury. If there is no showing of a resulting chronic
condition during service, then a showing of continuity of
symptomatology after service is required to support a finding
of chronicity. 38 C.F.R. § 3.303(b). Service connection may
also be granted for any disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
With respect to the Veteran's alleged participation on the
skeet shooting team, he indicated that he practiced with the
team nearly every weekend for an entire year, thereby
exposing him to noise from his own gun as well as his
teammates'. In addition to practice, he testified that he
also spent time working at the skeet range. Finally, the
Veteran indicated throughout this appeal that no hearing
protection was worn at any time during service. The Board
observes that the Veteran's statements are corroborated by
two buddy statements received from other members of his skeet
shooting team. Also of record is copy of a temporary duty
(TDY) order dated May 10, 1965, showing that the Veteran was
placed on TDY in order to participate in a skeet competition.
Under the circumstances, the Board finds that there is no
reason to doubt the credibility of the Veteran's lay
assertions of significant acoustic trauma during service from
skeet shooting. See 38 U.S.C.A. § 1154(a) (West 2002).
However, acoustic trauma sustained in service, in and of
itself, is not considered a disability for VA purposes; i.e.
warranting service connection or compensation. And
consistent with the Veteran's testimony, his service
treatment records are silent for any complaints of tinnitus
or ringing in his ears. Thus, the more critical question in
this case is whether the Veteran's claimed tinnitus is
etiologically related to military noise exposure.
Initially, the Board observes that the Veteran is competent
as a lay person to provide evidence that he experienced
ringing in his ears during and since service. See Charles v.
Principi, 16 Vet. App. 370, 374-75 (2002). Such evidence
tends to support his claim that he had chronic intermittent
tinnitus during service with continuity of symptomatology
since service. See 38 C.F.R. § 3.303(b). In addition to his
own lay assertions, the Veteran also submitted a private
medical opinion from an otolaryngologist, Dr. J.A.N. In his
report, Dr. J.A.N. indicates that the Veteran was evaluated
in October 2007 for complaints of hearing loss and tinnitus.
The Veteran provided a history of extensive noise exposure
during military service related to operating a skeet range;
he indicated that he would experience hearing loss and
tinnitus which would last several days following each
occasion of noise exposure at the skeet range. He also
reported a blast injury to his right ear with poor hearing
since. Dr. J.A.N. noted that the Veteran presently suffers
from bothersome tinnitus as well as bilateral hearing loss.
He then opined that the blast trauma and extensive noise
exposure, as reported by the Veteran, "could more likely
than not produce these findings." See Report by Dr. J.A.N.
dated November 14, 2007.
Conversely, a September 2005 VA examination report of record
contains an opinion that it is less likely than not that the
Veteran's tinnitus is due to noise exposure while in the
military. The examiner pointed to service treatment records
which were entirely negative for complaints of tinnitus
during service, or for decades thereafter, and a significant
gap in time between the Veteran's service and the first
documented complaints of tinnitus in 2002 in concluding that
it was less likely than not that tinnitus was service-
connected.
The Board observes that the September 2005 VA opinion was
provided following an examination of the Veteran and a review
of the claims file, including all pertinent lay and medical
evidence. The November 2007 private opinion by Dr. J.A.N.
does not reflect that any medical evidence was reviewed in
addition to the October 2007 findings. However, the Board
has already discussed that it finds the Veteran's lay history
of noise exposure to be credible. It also has not found his
own accounts of continuity of symptomatology since service to
be not credible. See Hayes v. Brown, 5 Vet. App. 60, 69-70
(1993) (it is the responsibility of the Board to assess the
credibility and weight to be given the evidence) (citing Wood
v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). Thus, it
appears that the November 2007 private opinion was based on
an accurate account of the Veteran's medical and lay history,
and the Board may consider it a probative opinion as to the
issue of etiology. See Nieves-Rodriguez v. Peake, 22 Vet.
App. 295 (2008) (the relevant inquiry when assessing the
probative value of a medical opinion is whether the opinion
reflects application of medical principles to an accurate and
complete medical history).
In sum, the evidence of record contains competent medical
opinions indicating both a positive and a negative nexus
between the Veteran's tinnitus and his military service.
Furthermore, the opinions provided by the VA examiner and Dr.
J.A.N. were rendered in conjunction with a history and
physical examination of the Veteran. There is nothing to
indicate that either of these etiological opinions is not
competent and both appear to have a reasonable basis in the
record. In light of such circumstances, the Board concludes
that there is at the very least an approximate balance
regarding an issue material to the determination of the
Veteran's claim. See 38 U.S.C.A. § 5107 (West 2002); Gilbert
v. Derwinski, 1 Vet. App. 49, 53 (1990). Under these
circumstances, service connection for tinnitus is warranted.
ORDER
Entitlement to service connection for tinnitus is granted.
____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs